RIO DE JANEIRO, BRAZIL – September 7, 2021 will be remembered in Mexico as the day abortion was decriminalized, that is, the day the nation’s Supreme Court ruled that no woman would ever again set foot in jail for terminating her pregnancy, and those who are detained will be freed.
Soon they will be back on the street. There are 40 to 50 of them in a country of 126 million inhabitants, because there is an even worse fact: there are certainly more women who die trying to accomplish what the States have been denying them for decades.
In Mexico, approximately 1 million clandestine abortions are performed every year, and a third of them result in medical complications. The annual rate of hospitalizations per 1,000 women aged 15 to 19 increased from 6.1 to 9.5 between 2000 and 2010, according to government data.
The World Health Organization (W.H.O.) estimates that 47,000 pregnant women lose their lives worldwide each year as a result of unsafe abortions. Mexico now wants to lower these figures. Usually, when a government legislates and a Supreme Court rules, society is about ready for this. But Mexican women today look to the neighboring United States, where across the border the state of Texas has just implemented a rule that virtually outlaws abortion. And they are unwilling to let their guard down.
The whole Latin American region extends to the southern border of the country, presenting in this matter the same inequalities as Mexico itself by looking at each state: only four of the 32 that make up the country have a modern term law (allowing the termination of pregnancy in the first 12 weeks of gestation) and now Coahuila will probably be added, on whose Penal Code the Supreme Court ruled to abolish imprisonment, a case that sets jurisprudence and compels all Mexican judges to rule accordingly.
Something similar is happening in the region. While Argentina waved its green handkerchiefs in December 2020 to hail a long-demanded term law, Chile is just beginning. Ecuador also recently benefited from its judicial system, which decriminalized abortion in case of rape while in El Salvador those who tried and succeeded in stopping their pregnancy are imprisoned in unsanitary jails.
In Brazil, the interruption of pregnancy is relatively common, but the legislation sticks to the classic assumptions: only in case of danger to the mother’s life, when the fetus is anencephalic and in case of rape, reports Naiara Galarraga Gortázar. Of all of them, Colombia is the most hopeful about the Mexico ruling. They expect a spillover in their territory, also through the judicial route, which has recently signaled that it intends to remove abortion from the Penal Code, with some modifications.
“The trend in Latin America is positive, but Mexico has taken a step further. This is what we are asking for in Colombia in the Causa Justa movement. We hope that this is a sign, an encouragement to the Colombian Court,” says Mariana Ardila, spokesperson for Women’s Link Worldwide and attorney for the global organization’s Legal Directorate.
Impacts among the highest courts in each country are not uncommon, which is why feminists view Mexico’s step with optimism. It is precisely in this country that the unconstitutionality of the 16% VAT on feminine hygiene products is being requested these days, a demand inspired by what judges in Colombia have already ruled.
The Inter-American Court returned a Chilean lesbian judge, Karen Atala, her children in 2012, based on the Mexican Supreme Court’s ruling on same-sex marriage. There are many other instances. “Of course there is legal dialogue between countries, and if there isn’t, there is a legion of female attorneys to make sure that the ideas get through,” says Estefanía Vela, executive director of Intersecta, a Mexican feminist organization.
The fact is that women are currently more focused on the courts than on their governments, where they often find nothing more than cold words. “I respect the court’s ruling,” was all that the Mexican president said on Tuesday’s historic ruling. Andrés Manuel López Obrador, who leads a so-called left-wing government, has always come out against abortion because he considers it an issue that divides the population.
Indeed. It occurs all over the world. But they are also divided by other policies, and he had no problem attacking the judges and the opposition to defend them. In Ecuador, conservative Guillermo Lasso said virtually the same thing when the Court decriminalized abortion in the case of rape: we respect the ruling. Little more.
Fortunately, rulings continue. The Mexican Supreme Court on Friday declared the protection of life from conception unconstitutional, so it cannot be used to restrict a woman’s reproductive rights. This article exists in several of Mexico’s states, precisely to shield against abortion.
It is true that federal countries, such as the United States and Mexico, have little room to intervene in such matters, which are up to their states.
“What could be done is to write a federal Penal Code that would be enforceable for all states, which would require a constitutional reform,” says Rebeca Ramos, director of Gire, Mexico’s most active organization in the fight for abortion. She is happy about the recently passed unconstitutionality ruling and hopeful for the direction of some Mexican states, which are beginning to signal that they want to change things on this issue.
However, under the U.S. system, a ruling like Mexico’s would have decriminalized abortion in all federal states, Estefanía Vela says.
“Federalism has advantages and disadvantages. Now we wonder why an unconstitutionality ruling like this is not binding on all states at the same time. But if the ruling had penalized abortion in all of them we would be suffering and we wouldn’t have free abortion like there has been in the Mexican capital for 13 years,” Vela adds. In her opinion, the important aspect is that cultural changes are solidified. By doing so, Vela believes societies will not allow their governments to regress, as occurred in Texas.
In a few countries like Mexico the Constitution enshrines (in its article 4) “the right of people to decide the number and spacing of their children.” “It’s a dream,” Vela says.
But in that country, many dreams remain in the legal wording. “We can say that the states are in violation of the Constitution,” the attorney says. “Our system of judicial review, the injunctions, are not designed to address systemic issues such as discrimination. In Mexico there are over 40 rulings that protect same-sex marriage, and yet we still need to resort to injunctions in order to get married,” Vela says. “It is outrageous that states do not legislate to enforce the Constitution.”
“JUSTICE MISTREATED ME”
Mexican Dafne McPherson was 25 years old and working in a mall in the state of Queretaro when she felt a sharp pain in her abdomen and began to bleed profusely. It happened in 2015. She gave birth in the restroom to a baby that died shortly thereafter. Until that point she hadn’t known she was pregnant.
“I was as if it were my fault,” she says in reference to the health care staff. After a lengthy surgery, McPherson woke up handcuffed to her hospital bed. Distraught and under the effects of anesthesia, the prosecutor’s office tried to get her to state in writing that she had caused the abortion. Six months later, a court sentenced her to 16 years in prison and she was behind bars for 3 years and 4 months.
Now released and after a strenuous legal battle, McPherson rejoices at the Supreme Court’s ruling. “I was very happy when I heard,” she says over the phone. “In my case the courts mistreated me and were cruel. The prosecution compared me to a dog and the judges tried to blame me out of pure prejudice. From the beginning I already knew that they had convicted me.”
Health care personnel is the other side of this issue. Conscientious objection is widely extended in their ranks. But the Supreme Court, again, should rule on this soon.
The Chief Justice of the Mexican Judiciary Artur Zaldivar recently gave one of the most boldly feminist speeches ever heard. With a solemn and emotional tone he celebrated the ruling that he attributed to the long struggle of women in Mexico for their rights and presented it as a tribute to all of them, also to those who have passed away and to the women who are still imprisoned. “Yes, it is possible,” he said in a press conference, after describing the unanimous ruling of magistrates as historic.
Some notions glared in this unconstitutionality ruling: that women are independent to freely decide about their pregnancy, and that penalizing abortion punishes poverty, since it is the most vulnerable women and those from rural areas who sleep in jail. “Rich young women have always had abortions, but they have not been jailed,” Zaldívar said Wednesday.
Organizations that have been helping women have abortions for years know this well. Andrea, 33, belongs to one of these networks in Sonora (northern Mexico) and says she has monitored some 5,000 home abortions in the past decade. Step by step she guides women before, during, and months later, thanks to the WHO-approved protocol for administering Misoprostol, a drug used in the late 1980s in Brazil as medicine for gastric ulcers that is also used to terminate pregnancy.
“In Mexico the purchase and sale of the drug is not illegal, although some pharmacies ask for a prescription to be sell it,” the activist says. “We do it, but we are not doctors or psychologists, this is a right that the state should provide women within a free, safe, and unpaid way,” she says.
Although many states in Mexico still maintain restrictive laws against abortion, feminists recognize that at the federal level the Health system is friendly and effective. This is Gire’s Rebeca Ramos’ opinion, as well as Estefanía Vela, from Intersecta.
Over these last few days, Mexican feminists, and with them, all Latin American women, have displayed their best smile, despite the fact that, because of the pandemic, they didn’t take to the streets en masse with their green scarves, as would have been expected in Argentina. Society is maturing the idea reflected in the Constitution, aware that the time has come to allow women to freely decide about their bodies.
But they frown at Texas and think of Simone de Beauvoir’s quote: “Never forget that it only takes a political, economic or religious crisis for women’s rights to be called into question. These rights can never be taken for granted. You must remain vigilant throughout your life.”
Source: El Pais